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Lozada v. Casale

United States District Court, Third Circuit

December 16, 2013

Lozada
v.
Casale, et al.,

Tomas Lozada Jr., pro se plaintiff, Jersey City, NJ.

LETTER OPINION & ORDER

MICHAEL A. HAMMER, Magistrate Judge.

Dear Litigants:

Presently before the Court is plaintiff's April 2, 2013, application for pro bono counsel under 28 U.S.C. § 1915(e)(1). Appl. for Pro Bono Counsel, Apr. 2, 2013, ECF No. 2. For the reasons set forth below, plaintiff's request is denied without prejudice.

Background

On April 2, 2013, plaintiff filed a Complaint against Anthony Casale, Andrea Genova, and Rosanne Lamolino. Compl., Apr. 2, 2013, ECF No. 1. Plaintiff contends that Casale, in his capacity as Chief of Hudson County Probation Department Child Support Unit ("Probation Department"), violated his civil rights when Casale allegedly breached his duty to assure that employees of the Probation Department did not violate plaintiff's rights. Plaintiff also contends that defendant Casale failed to secure an audit that was ordered by a state court judge. As a result, plaintiff alleges that the refusal to comply with the court order is an "active Ultra Vires Act." See Compl. Form ¶ 4b, Apr. 2, 2013, ECF No. 1.

Plaintiff also alleges that Andrea Genova, Senior Probation Officer at the Probation Department, refused to perform the audit and provided erroneous information to a state court judge regarding plaintiff's custody of his two daughters. See Compl. Form ¶ 4c, Apr. 2, 2013, ECF No. 1 at 4.

Plaintiff further contends that Rosanne Lamolino, Clerk of Video and Audio at the New Jersey State Superior Court in Hudson County, is withholding evidence in the form of video and audio tapes from a hearing involving plaintiff in June 2011. See Compl. Form ¶ 4, Apr. 2, 2013, ECF No. 1 at 6.

Plaintiff filed an application to proceed in forma pauperis ("IFP") on April 2, 2013. IFP Appl., Apr. 2, 2013, ECF No. 1-3. On that same date, plaintiff filed the instant application for the appointment of pro bono counsel. Appl. for Pro Bono Counsel, Apr. 2, 2013, ECF No. 2. On November 26, 2013, Plaintiff's application to proceed IFP was granted. Order, Oct. 26, 2013, ECF No. 6.

Discussion

In civil cases, neither the Constitution nor any statute gives civil litigants the right to appointed counsel. Parham v. Johnson , 126 F.3d 454, 456-57 (3d Cir. 1997). District courts, however, have broad discretion to determine whether appointment of counsel is appropriate under 28 U.S.C. § 1915(e). Montgomery v. Pinchack , 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace , 6 F.3d 147, 153 (3d Cir. 1993)). Appointment of counsel may be made at any point in the litigation, including sua sponte by the Court. Montgomery , 294 F.3d at 498 (citing Tabron , 6 F.3d at 156).

In the Third Circuit, the Court considers the framework established in Tabron , 6 F.3d at 155-157. Under the Tabron framework, the Court must first assess "whether the claimant's case has some arguable merit in fact and law." Montgomery , 294 F.3d at 499 (citing Tabron , 6 F.3d at 155). If the applicant's claim has some merit, the Court considers the following factors:

(1) the plaintiff's ability to present his or ...

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